IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MELISSA ANN FLANNERY,

Plaintiff,

vs. Civil Action 2:11-CV-1120

Judge Frost

Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner

of Social Security,

Defendant.

REPORT AND RECOMMENDATION

This is an action instituted under the provisions of 42 U.S.C. §§

405(g), 1383(c), for review of a final decision of the Commissioner of

Social Security denying plaintiff’s applications for disability

insurance benefits and supplemental security income. This matter is

now before the Court on plaintiff’s Statement of Errors, Doc. No. 11,

and the Commissioner’s Memorandum in Opposition, Doc. No. 16.

Plaintiff Melissa Ann Flannery filed her applications for

benefits on April 15, 2010, alleging that she has been disabled since

March 31, 2010, as a result of back and knee problems, anger issues,

arthritis, cocaine addiction and problems with her nerves and

depression. PAGEID 260. The applications were denied initially and

upon reconsideration, and plaintiff requested a de novo hearing before

an administrative law judge.

A video hearing was held on July 19, 2011, at which plaintiff,

represented by counsel, appeared and testified, as did Harry Tanzey,

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who testified as a vocational expert. In a decision dated July 28,

2011, the administrative law judge concluded that plaintiff was not

disabled within the meaning of the Social Security Act. Page ID 47-58.

That decision became the final decision of the Commissioner of Social

Security when the Appeals Council declined review on October 14, 2011.

Page ID 37-40.

Plaintiff was 42 years old on her alleged disability onset date.

She has a high school education and past relevant work experience as a

laborer, manager in a carry-out drive thru and substitute school bus

driver. Plaintiff also served as a utility helicopter mechanic in the

United States Army from 1987 to 1991. 

Plaintiff testified at the administrative hearing that she quit

working in March 2010 because she could no longer lift the boxes of

inventory in the drive-thru carry out that she managed for her mother;

additionally, she could not deal with people.1 Page ID 73. She does not

want to be around people and has anger issues. Page ID 81.

Plaintiff also testified that she is depressed. Page ID 85. She

sometimes “throw[s] a fit,” which drives people away. Id. When she is

feeling depressed, she just wants to go to bed. Id. She is also easily

distracted. Page ID 86. She often finds herself beginning one task and

ending up in another room doing something else. Page ID 86-88.

Although plaintiff acknowledged a history of cocaine use, she

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Plaintiff alleged both physical impairments. Her Statement of Errors,

however, focuses primarily on her mental impairments and limitations.

Accordingly, the Court will focus its review of the hearing testimony and

medical evidence on plaintiff’s mental impairments and limitations.

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indicated that she has not used cocaine since February 2007. Page ID

92-93.

The vocational expert was asked to assume a claimant with

plaintiff’s vocational profile who, from a mental perspective, is

limited to simple, routine, repetitive tasks with only occasional

contact with co-workers and the general public. Page ID 115-16. The

vocational expert testified that such a claimant could not perform

plaintiff’s prior work but could perform jobs at the unskilled

sedentary level, including such jobs as assembler (90,000 such jobs

nationally and 6,500 such jobs regionally) and as price marker (67,000

jobs nationally and 2,000 jobs regionally). Page ID 115-16. 

Asked to assume, in addition, a restriction to only occasional

contact with supervisors, the vocational expert responded that the

claimant could perform the same jobs, but that the job base, including

the jobs previously identified, would be reduced “by probably 75

percent.” Page ID 116-17.

Plaintiff began mental health treatment at L & P Services, Inc.

(“L & P Services”) on June 26, 2009, upon referral by her probation

officer. Page ID 313-22. The intake assessment included diagnoses of

alcohol dependence, in partial remission; cocaine dependence, in

sustained full remission; anxiety, not otherwise specified; and

depression, not otherwise specified. Page ID 321. Plaintiff was

assigned a Global Assessment of Functioning (“GAF”) score of 55. Id.

Plaintiff was referred to counseling.

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Kenneth Leopold, M.D., was plaintiff’s treating family

practitioner from February 1995 to April 2011. Page ID 376-417. In

July 2009, Dr. Leopold diagnosed generalized anxiety disorder and

renewed plaintiff’s prescriptions for Vicodin, Flexeril and Xanax. He

strongly recommended that plaintiff follow up with mental health

counseling and expressed some concern regarding plaintiff’s use of

medication: “We need to watch her closely. We will not be giving her

meds early and we will continue to monitor the situation.” Page ID

393.

In September 2009, plaintiff underwent an evaluation at L & P

Services by Carla Rosler, CNS. Plaintiff reported that she was worried

about upcoming court hearings and the possibility of imprisonment; she

consequently had difficulty concentrating. Ms. Rosler characterized

plaintiff’s judgment and insight as poor, noting specifically that

plaintiff kept old guns in her house. According to Ms. Rosler,

plaintiff was oriented. Plaintiff’s intake diagnoses remained

unchanged. Id.

In October 2009, plaintiff complained to Dr. Leopold of stress,

anxiety and inability to concentrate. Page ID 393. She described

“feeling trapped between her duties at the carry out store and the

financial pressures that come with it[,] along with feeling

distractions from different people always wanting to talk to her and

she feels like she cannot get anything accomplished.” Id. Dr. Leopold

prescribed mood stabilizing medication and obtained permission to

speak with plaintiff’s counseling service. Id.

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On April 1, 2010, Dr. Leopold completed a basic medical form and

characterized plaintiff as “employable.” Page ID 406-07.

Plaintiff was consultatively examined by clinical psychologist

Gary Sarver, Ph.D., in July 2010. Page ID 345-51. Dr. Sarver

indicated that plaintiff’s independent living skills appeared to be

adequate in light of her ability to cook, do dishes and laundry, and

shop. Page ID 345. Plaintiff reported that she was depressed about her

daughter moving out, but denied any subjective anxiety or worry. Page

ID 347. On clinical examination, Dr. Sarver noted that plaintiff’s

speech and language were within normal limits, although plaintiff was

quite loquacious and had to be frequently redirected to the original

question asked. Id. Dr. Sarver noted no motoric indications of

anxiety, unusual apprehension, vigilance, panic attacks, or

agoraphobia. Id. Plaintiff’s short-term memory, attention and longterm memory were functionally intact. Page ID 348. Concentration,

persistence, and pace were appropriate. Page ID 349. Plaintiff was

pleasant, cooperative, interactive, and responded appropriately to the

test situation. Id. Plaintiff reported that she had a few friends;

she like to fish. Id. Dr. Sarver diagnosed adjustment disorder with

mixed anxiety and depressed mood, polysubstance dependence (in early

sustained remission), and personality disorder, not otherwise

specified. Page ID 350. According to Dr. Sarver, plaintiff was

moderately impaired in her ability to relate to others and to manage

daily work stresses secondary to her personality disorder and poor

coping skills. Id. Plaintiff was not impaired in her ability to

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maintain attention and to perform simple, repetitive tasks, or in her

ability to understand and follow simple one- and two-step job

instructions. Id.

State agency psychologist Mel Zwissler, Ph.D., completed a

psychiatric review technique form in July 2010. Page ID 353-66. 

According to Dr. Zwissler, the record documented an adjustment

disorder with mixed anxiety and depressed mood, a personality disorder

not otherwise specified, and polysubstance dependence. Page ID 356-61. 

Dr. Zwissler opined that plaintiff had no restrictions in her

activities of daily living, moderate difficulties in maintaining

social functioning, no difficulties in maintaining concentration,

persistence, or pace, and no episodes of decompensation. Page ID 363. 

In a mental residual functional capacity assessment, Dr. Zwissler

concluded that plaintiff would be moderately impaired in her ability

to complete a normal work day and work week without interruptions from

psychologically based symptoms and to perform at a consistent pace

without an unreasonable number and length of rest periods and in her

ability to interact appropriately with the general public, to accept

instructions and to respond appropriately to criticism from

supervisors and to changes in the work setting. Page ID 367-68. Her

ability to relate to others was moderately limited by depression and

isolating behaviors; her ability to follow instructions and to

maintain concentration were no more than mildly limited; her ability 

to cope with stress and pressure was moderately limited by

psychological conditions Page ID 369. Dr. Zwissler concluded that

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plaintiff retained the ability to perform tasks in a relatively static

work environment where contact with others was occasional and

superficial in nature. Id. In October 2010, Frank Orosz, Ph.D.,

another state agency psychologist, reviewed the file and affirmed Dr.

Zwissler’s assessment. Page ID 373. 

In September 2010, plaintiff reported to Dr. Leopold that

she had discontinued Celexa because it made her feel “hyper.” Page ID

410. Dr. Leopold speculated that plaintiff may suffer from bipolar

disorder based on her history of manic problems with Celexa. Id. He

started her on Seroquel and recommended a referral to a psychiatrist

for evaluation of possible bipolar disorder. Id. The following month,

plaintiff reported that she was doing somewhat better on Seroquel.

Page ID 410. Dr. Leopold noted that plaintiff had still not undergone

a psychiatric evaluation at L & P Services. Dr. Leopold increased

plaintiff’s Seroquel dosage and concluded that, until plaintiff

undergoes a psychiatric evaluation, “her ability to work is severely

compromised and I do not feel she is capable of employment at the

present time.” Id.

On November 1, 2010, Dr. Leopold opined that plaintiff

suffers from “Generalized Anxiety Disorder with possible Bipolar

Disorder and some component of Attention Deficit Disorder.” Page ID

413.

I believe her ability to work is severely

compromised. I am unable to release her to work

at this time. I feel she is incapable of gainful

employment until psychiatric evaluation.

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Page ID 413 (emphasis added).

In January 2011, plaintiff reported to Dr. Leopold that she

still had not undergone a psychiatric evaluation. Page ID 416. In

February 2011, plaintiff reported that she had discontinued another

psychiatric medication. Dr. Leopold recommended that she discuss this

matter with a psychiatrist at L & P Services. Id.

Plaintiff underwent a psychiatric evaluation Brendan Carroll,

M.D., at a Veterans Administration Medical Center (“VA”) on March 24,

2011. Page ID 433-40. Plaintiff reported that, according to family

members, “her moods overall [we]re better, less short fused” Page ID

434. She denied side effects from her medications. Page ID 434. On

mental status examination, plaintiff was alert and attentive, her

behavior was cooperative and reasonable, her speech was normal, her

affect was congruent with her mood, her thought processes and

associations were normal and coherent, and her insight and judgment

were good. Page ID 437. Dr. Carroll made working diagnoses of bipolar

disorder (not otherwise specified) per patient history, anxiety

disorder per patient history, addictive disorder, and attention

deficit disorder. Id. Plaintiff was assigned a GAF score of 58. Page

ID 438.

Heidi Jache, M.D., a psychiatrist with L & P Services, began

treating plaintiff in March 2011. Page ID 456-62. Plaintiff denied

mania, suicidal ideation or self-abusive behavior. Page ID 456.

Although plaintiff reported that her memory was not good, but Dr.

Jache observed excellent memory of dates in the past. Id. On mental

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status examination, plaintiff was well-groomed, displayed average eye

contact and demeanor, had a euthymic mood and a full affect and was

cooperative. 459. Her speech was moderately rapid and mildly

pressured. Id. Plaintiff reported “a great deal of stress” related to

her girlfriend’s drinking issues, problems with her home and her

daughter’s relationship problems. Page ID 460. She also reported

that, according to her family, Seroquel had helped with plaintiff’s

mood swings and anger. Id. Dr. Jache diagnosed bipolar disorder, not

otherwise specified, generalized anxiety disorder, nicotine

dependence, alcohol and cocaine dependence (abstaining since 2007);

the doctor also suggested that attention deficit hyperactivity

disorder and organic affective disorder as a result of cocaine and

alcohol use be ruled out. Id. Dr. Jache recommended continued use of

Seroquel and weaning off Xanax, which had been prescribed by Dr.

Leopold. Page ID 461.

Dr. Leopold commented in April 2011 that plaintiff’s “pain and

generalized anxiety with possible bipolar disorder” is “under good

control.” Page ID 416.

Dr. Jache noted in May 2011 that plaintiff’s mood was

“ok/congruent” and her behavior was “good.” Although Dr. Jache found

plaintiff to be hypomanic, time did not permit exploring another mood

stabilizer. Plaintiff was assigned a GAF score of 45. Page ID 463-65.

In his decision, the administrative law judge found that

plaintiff’s severe mental impairments consist of anxiety disorder,

depressive disorder, and personality disorder. Page ID 49. The

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administrative law judge expressly excluded plaintiff’s prior

polysubstance abuse as a severe impairment, based on plaintiff’s own

testimony and the record. Page ID 50.

The administrative law judge went on to find that plaintiff’s

mental impairments neither met nor equaled an impairment under

Listings 12.04 (affective disorders), 12.06 (anxiety disorders) or

12.08 (personality disorders) because the record did not establish

that plaintiff’s mental impairments met the “B” criteria of those

Listings, Page ID 50-51, nor did they meet the “C” criteria of

Listings 12.04 or 12.06. Id.2

Relying on the assessments of Dr. Sarver and the state agency

psychologists, the administrative law judge found that plaintiff’s

mental impairments limited her to simple routine repetitive tasks and

occasional contact with co-workers and the public. Page ID 51, 55, 56.

The administrative law judge accorded “no weight” to the GAF score of

45 assessed by Dr. Jache, finding that the score was not supported by

either the evidence as a whole or Dr. Jache’s own objective findings. 

Page ID 56.

Although plaintiff’s residual functional capacity, as found by

the administrative law judge, would not permit the performance of

plaintiff’s past relevant work, Page ID 56, the administrative law

judge relied on the vocational expert’s testimony to find that

plaintiff could perform other work that exists in significant numbers

in the national economy. Page ID 57-58. Accordingly, the

2

Listing 12.08 does not include “C” criteria.

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administrative law judge concluded that plaintiff was not disabled

within the meaning of the Social Security Act. Page ID 58.

Pursuant to 42 U.S.C. §405(g), judicial review of the

Commissioner’s decision is limited to determining whether the findings

of the administrative law judge are supported by substantial evidence

and employed the proper legal standards. Richardson v. Perales, 402

U.S. 389 (1971). Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595

(6th Cir. 2005). Substantial evidence is more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003); Kirk

v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.

1981). This Court does not try the case de novo, nor does it resolve

conflicts in the evidence or questions of credibility. Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007).

In determining the existence of substantial evidence, this Court

must examine the administrative record as a whole. Kirk, 667 F.2d at

536. If the Commissioner’s decision is supported by substantial

evidence, it must be affirmed even if this Court would decide the

matter differently, Tyra v. Sec’y of Health & Human Servs., 896 F.2d

1024, 1028 (6th Cir. 1990)(citing Kinsella v. Schweiker, 708 F.2d

1058, 1059 (6th Cir. 1983)), and even if substantial evidence also

supports the opposite conclusion. Longworth, 402 F.3d at 595.

In her Statement of Errors, plaintiff contends that the

administrative law judge erred in failing to include plaintiff’s

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diagnosis of bipolar disorder in the list of plaintiff’s severe

impairments and in relying on the vocational expert’s testimony

without first properly including in the residual functional capacity

the full range of non-exertional limitations caused by the claimant’s

severe mental impairments. Plaintiff also contends that the

administrative law judge failed to accord proper weight to Dr.

Leopold’s opinions of disability. 

As noted, the administrative law judge did not include bipolar

disorder among plaintiff’s severe impairments. It was only Dr. Jache

who expressly diagnosed this condition; the consultative examiner and

the state agency psychologists did not include bipolar disorder. 

There is therefore substantial support in the record for the

administrative law judge’s failure to include this condition as a

sever impairment. In any event, however, the failure of an

administrative law judge to include a particular condition among a

claimant’s severe impairment does not constitute reversible error if,

considering the claimant’s other severe impairments, the

administrative law judge’s residual functional capacity assessment

reasonably accommodates the limitation of function caused by such

impairment. Nejat v. Comm’r of Soc. Sec., 359 Fed. App’x 574, 576-77

(6th Cir. 2009). “[W]hen an ALJ considers all of a claimant’s

impairments in the remaining steps of the disability determination, an

ALJ’s failure to find additional severe impairments at step two does

‘not constitute reversible error.’” Id. at 577 (citing Maziarz v.

Sec’y of Health & Human Servs., 837 F.2d 240. 244 (6th Cir. 1987)). In

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the case presently before the Court, the administrative law judge

found that plaintiff suffers severe mental impairments and reasonably

accommodated those impairments in assessing plaintiff’s residual

functional capacity. Indeed, although plaintiff challenges the

residual functional capacity assessment of the administrative law

judge, she does not articulate any additional limitation of function

simply by reason of her claimed bipolar disorder. Under these

circumstances, the Court concludes that plaintiff’s challenge to the

decision of the administrative law judge by reason of the failure to

include bipolar disorder among plaintiff’s sever impairment is without

merit.

Plaintiff also complains that, in assessing plaintiff’s residual

functional capacity, the administrative law judge failed to include

all the limitations caused by plaintiff’s severe mental impairments. 

Plaintiff specifically refers to the opinion of Dr. Sarver, the

consultative examiner to whose opinions the administrative law judge

gave great weight, who opined that plaintiff was moderately impaired

in many areas of work-related functioning.

Although Dr. Sarver opined that plaintiff was moderately

impaired in certain work-related areas of functioning, he also

concluded that plaintiff was not impaired in her ability to maintain

attention, to perform simple, repetitive tasks and to understand and

follow simple one and two step job instructions. Page ID 350. The

state agency psychologists who reviewed the record, including Dr.

Sarver’s assessment, concluded that plaintiff’s documented mental

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impairments left her with the residual functional capacity to perform

tasks in a relatively static work environment where contact with

others was occasional and superficial in nature. Page ID 369, 373. 

The administrative law judge’s finding that plaintiff had the residual

functional capacity, from a mental standpoint, to perform simple,

routine, repetitive tasks that require only occasional contact with

co-workers and the public is consistent with these assessments and

enjoys substantial support in the record.

Finally, plaintiff complains that the administrative law judge

failed to accord appropriate weight to Dr. Leopold’s opinions of

disability. In assessing Dr. Leopold’s opinions, the administrative

law judge reasoned as follows:

I give little weight to the opinions of Dr.

Leopold that the claimant was incapable of

gainful employment, as they are not supported by

objective findings indicated in his own

treatment notes. Dr. Leopold indicated that

claimant had to have a psychiatric evaluation

before he released her to work, but mental

health evidence reveals she was not as limited

as alleged and functioned well when compliant

with treatment. Additionally, on April 28,

2011, a treatment note reveals Dr. Leopold

opined the claimant’s condition was under good

control.

 

Page ID 55. Although the opinion of a treating physician should be

accorded controlling weight if it is consistent with the evidence and

supported by sufficient clinical findings, Smith v. Comm’r of Soc.

Sec., 482 F.3d 873, 877 (6th Cir. 2007), an administrative law judge

is not bound by such an opinion if there is substantial medical

evidence to the contrary. Id. In addition, the administrative law

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judge is not bound by a physician’s conclusory opinion that a claimant

is unable to work. See Bass v. McMahon, 499 F.3d 506, 511 (6th Cir.

2007).

Dr. Leopold is a family practitioner and, as the administrative

law judge noted, mental health experts rendered opinions that were

inconsistent with certain of Dr. Leopold’s opinions. Moreover, even

Dr. Leopold was not consistent in his opinions. For example, Dr.

Leopold opined in April 2010 that plaintiff was “employable.” Page ID

407. Other opinions of disability were conditional on plaintiff’s

anticipated psychiatric evaluation. See, e.g., Page ID 410, 413. 

Finally, in April 2011, Dr. Leopold noted that plaintiff’s mental

impairments were “under good control.” Page ID 416. Under all these

circumstances, the Court concludes that the administrative law judge’s

assessments of Dr. Leopold’s opinions enjoy substantial support in the

record.

Having carefully reviewed the record, the Court concludes that

the decision of the Commissioner applied all appropriate standards and

is supported by substantial evidence.

It is therefore RECOMMENDED that the decision of the

Commissioner be affirmed and that this action be dismissed.

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must be

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filed within fourteen (14) days after being served with a copy

thereof. F.R. Civ. P. 72(b).

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to

de novo review by the District Judge and of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King 

Norah McCann King

United States Magistrate Judge

January 28, 2013

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